Concurrent Damages

Abstract

In areas as diverse as copyright, pollution, consumer protection, and electronic privacy, statutory damages have become a familiar form of civil remedy. Yet as judges are discovering, these formulaic awards can swing by orders of magnitude for no good reason — due to the rigidly linear way in which the awards stack up, count by count. The irony is that too much structure, rather than too little, is what causes such capricious outcomes.

This Article proposes a solution: allow courts to run damages concurrently. As with concurrent criminal sentencing, the judge would recognize every act of violation, and yet group the nominal counts so that the effective penalties stack up in a sensible way.

This simple option would allow the judge to tailor the structure of damages to reflect how the offending acts translate into harm — a notable advantage, for instance, when there is diminishing marginal harm, or when the suitable unit of harm varies by context. ("Should the copyright damages accumulate per song, per album, or per artist — in this case?") Although creating such an option might introduce a risk of error, it also promises to displace the fudging strategies that some courts already use when confined by the linearity of statutory damages. A concurrent damages option might thus enable not only more fitting compensation but also clearer, truer signals for future actors and future courts.

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